New Jersey Division of Youth and Family Services v. A.C.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,v.A.C., DEFENDANT-APPELLANT, AND D.M., DEFENDANT-RESPONDENT.IN THE MATTER OF T.M., MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-673-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2009

Before Judges Lisa and Baxter.

This is a Title 9 abuse and neglect case. The order terminating the litigation, from which the appeal is taken, was entered on August 19, 2008, prior to the Supreme Court's April 7, 2009 decision in New Jersey Division of Youth and Family Services v. G.M., 198 N.J. 382 (2009). The order transferred physical custody*fn1 of T.M. from her mother, A.C., who had committed an act of neglect, to her father, D.M. The order was entered after a best interests custody hearing, at which both parents were represented by counsel, testified, and presented expert witnesses. The judge conducted that hearing in compliance with this court's decision in G.M.,*fn2 Division of Youth and Family Services v. G.M., 398 N.J. Super. 21 (App. Div. 2008), aff'd in part, modified in part, and remanded, 198 N.J. 382 (2009).

However, in G.M. the Supreme Court modified this court's decision. The Court said: "The key deficiency of the proceeding below was not in the failure to hold a custody hearing, but in the failure to hold a dispositional hearing." G.M., supra, 198 N.J. at 402. The Court continued that at such a hearing the trial court must "determine whether the children may safely be released to the custody of their mother, who was responsible for their care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8.51, some other disposition is appropriate." Ibid. (emphasis added).

A.C. argues that the trial court erred in not conducting a dispositional hearing, but that the evidence at the best interests hearing and the judge's findings supported the conclusion that both parents were fit and capable of parenting, as a result of which, had the Title 9 child welfare standard been applied, as would be the case at a dispositional hearing, T.M. would have been returned to her. She asks that we so order. Alternatively, she seeks a remand for a dispositional hearing.

D.M., the Division of Youth and Family Services (Division), and the Law Guardian oppose the appeal. They argue that the best interests hearing was comprehensive and fair and that the resulting decision was justified and should not be disturbed. Underlying this position is the argument that the best interests of the child are always the polestar of child welfare cases and there is no automatic right of return to the offending parent when it is in the child's best interests to remain with the non-offending parent. They argue that T.M., who has just turned nine years old,*fn3 has been in her father's physical custody for more than two years, since June 8, 2007, is doing very well, and is entitled to stability and permanency. They argue that it would be inappropriate and a waste of judicial resources to require further proceedings. They contend that the Supreme Court's decision in G.M. should not be given retroactive effect because of the long passage of time in this case and because it announced a new rule of law. They further contend that the result would be the same because the judge's well-supported findings after the best interests hearing implicitly concluded that T.M. could not be safely returned to the physical custody of her mother.

Our review of the record and our consideration of the Court's rationale and holding in G.M. persuades us that a remand for a dispositional hearing is required.

The Court did not announce in G.M. a new rule of law. It set forth the correct application of the interrelated provisions of Title 9, which require a dispositional hearing. Contrary to the Division's argument that the hearing already conducted in this case was sufficient even though it "was not characterized as a dispositional hearing pursuant to N.J.S.A. 9:6-8.50," more than labels are at stake. As the Court made clear in G.M., the standards for determination in the two kinds of hearings differ significantly. Id. at 399-402. Indeed, the Court remanded for a dispositional hearing notwithstanding the fact that a best interests custody hearing was in process in accordance with this court's decision. Id. at 402-03 n.3. That was required because, although a non-custodial parent always has the right to seek a change of custody, "the availability of a non-custodial parent to care for the children does not alter the responsibility of the Division to follow the statutory framework for litigating a Title Nine action." Ibid.

The Court's action in G.M. also sways us against the argument that because of the passage of time and the need for stability and permanency we should leave undisturbed the order under review. In G.M. the children had been removed from their mother and placed with their father on March 31, 2006. Id. at 389. After the passage of three years, the Court, in its April 7, 2009 decision, remanded for a dispositional hearing, notwithstanding that a best interests custodial hearing was in process. Id. at 405. Less time has passed here since the transfer of custody.

We are also not persuaded that a remand would cause a waste of resources and expenditure of unnecessary additional energy and effort. The judge who managed this case for an extended period of time and conducted the best interests hearing is assigned for the current court term to the Family Part. The judge is thoroughly familiar with the case and is available to conduct such further proceedings as are required to arrive at to a conclusion under the proper standard. All of the evidence already presented may be considered, and the hearing previously held may, in effect, be reopened, continued, and supplemented.

We reject the arguments of both sides that the evidence and findings at the best interests hearing render unnecessary a further hearing and findings. Each side argues that if the Title 9 child welfare standard were applied to the evidence and findings at that hearing each parent, respectively, would be entitled to custody. This position is flawed for two reasons.

First, neither the parties nor the judge focused on the narrower Title 9 standard. Had they done so, the parties might well have produced different evidence and made different arguments. The judge would also have directed her findings to a different legal standard.

Second, the evidence was not overwhelming in one direction or the other as to whether T.M. could be safely returned to her mother, and the judge's findings on the subject (only one factor in the best interests analysis) were mixed. Although we have found it unnecessary in this opinion to set forth the very lengthy factual and procedural history of the case, we now set forth a very brief summary of the facts that support this point.

The removal occurred on June 24, 2005 because T.M. was left alone in the home unsupervised.*fn4 The Division commenced this action on June 28, 2005. T.M. was then under the sole care and supervision of A.C. D.M. was incarcerated at the time. The court entered an order awarding the Division custody of T.M., who was placed in the home of a family friend. A.C. exercised visitation. On August 16, 2005, A.C. waived a factfinding hearing and stipulated that she had left T.M. improperly supervised, thus constituting neglect. The order of August 16, 2005 required A.C. to cooperate with various services, including a psychological evaluation and counseling, and contemplated the return of T.M. to A.C. within two weeks. However, A.C. was substantially non-compliant with the ordered services. When A.C.'s compliance reached an appropriate level, the court ordered the child returned to her on August 22, 2006. The Division retained custody and further services were ordered.

During this removal and apparently prior to it, T.M. spent some time with her paternal grandmother in Pennsylvania. There was tension between A.C. and the paternal grandmother, who had sought visitation rights, expressed a desire to have T.M. placed with her, and attended some of the court hearings.

A.C.'s compliance with the required counseling, including mother-child counseling, was poor. Although the Division acknowledged that A.C. was providing appropriate care for T.M. and that T.M. was doing well in school, it suggested it might seek transfer of custody to the paternal grandmother if A.C. continued to be noncompliant.

In June 2007, while T.M. was visiting her grandmother in Pennsylvania, she had marks on her thigh and was taken to a hospital for evaluation. Hospital personnel believed the marks were from physical abuse. The Division filed an amended complaint alleging abuse by A.C. The child was removed from A.C. and placed with her father. However, the Division had T.M. examined by a pediatric physician, who opined that the marks were not caused by a belt or any other kind of physical abuse, but resulted from T.M. scratching insect bites or a rash on her thigh. The Division therefore acknowledged that abuse was not substantiated and withdrew the allegation. Nevertheless, the court ordered that T.M. remain in the physical custody of her father.

In the ensuing months, counseling and visitation continued. On December 4, 2007, the Division presented to the court its new permanency plan, namely that the litigation be terminated, but that services continue, with the parents being granted joint legal custody, and physical custody to remain with the father. Over A.C.'s objection, the court so ordered. That status continued, with ongoing counseling and A.C. exercising visitation.

After this court's January 23, 2008 decision in G.M., in which we held that a best interests custody hearing is required before changing physical custody in a Title 9 case, A.C. moved for reconsideration and for such a hearing. The court granted the motion and reopened the case. The hearing was conducted on July 21 and August 11, 2008, and the judge rendered an oral decision on August 19, 2008.

The judge comprehensively analyzed the evidence as applicable to each of the statutory best interests factors. See N.J.S.A. 9:2-4c. The judge prefaced that analysis by stating: "The issue here is residential custody. Although abuse [sic -neglect] was substantiated two times in 2003, 2005, this case does not turn on a finding that [A.C.] is currently unfit." The judge later stated that, with respect to "[t]he fitness of the parents[,] [b]oth are able to adequately parent." The judge continued, however, by noting that this was an overall best interests evaluation. She said: "But... when we're looking at the best interest we have to look at the... father and the mother." The judge noted that A.C. had not regularly complied with counseling obligations, seemed to place her needs above T.M.'s, and had somewhat unstable living arrangements. After announcing her decision on physical custody, the judge addressed visitation arrangements. She said, "I don't want [A.C.] to have overnight visitation until she's had -- actually had family counseling with her child."

The judge did not squarely address whether T.M. could be safely returned to the physical custody of A.C. As we previously stated, the judge's findings as to that aspect of the overall best interests evaluation were mixed.

The remand proceedings shall be conducted by the same judge who conducted the best interests hearing. The parties may present such additional evidence, including updated information of events that have transpired since entry of the order under review, as they deem appropriate and as the judge, in her discretion, allows. Any such additional evidence shall be considered in conjunction with that which has previously been presented. The ultimate determination shall be made in accordance with the principles laid down by the Supreme Court in G.M.

Reversed and remanded. We do not retain jurisdiction.

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